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2019 Supreme(Mad) 2859
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
R. Tharani, J.
A. Pinky Sureka – Appellant
Versus
Tamil Nadu Industrial Investments Corporation and Others – Respondents
A.S. (MD) Nos. 166, 167, 168 of 2015, O.S. No. 5 of 2010, M.P. (MD) Nos. 1 to 3 of 2015
Decided On : 16-04-2019
Advocate Appeared:
For the Appellant : S. Meenakshi Sundaram for M.P. Senthil.
For the Respondents: M. Suresh, Aiyar & Dolia, Bijai Sundar, M. Ramdoss, G. Jermiah for Ghouse Kathiri.
Headnote:
Constitution of India, Article 137 - State Financial Corporation Act, 1951 - Section 29 - Paying revenue tax - Corporation which is a Company run by one of joint family members - Case of plaintiff is that first schedule property jointly belonged by virtue purchase by them jointly as partners through a registered sale deed got first schedule property in oral partition and second schedule property was given to executed an unregistered Will bequeathing second schedule property in favour plaintiff who is wife of her grandson said died and Will came into force –Held, Petitions filed by appellant and were already dismissed by this Court - One of the partner has filed his written statement admitting mortgage deed and admitting case of Corporation - As already discussed Wills said to have been executed are not properly proved by appellant - Even if those Wills are proved those Wills are valid only subject to mortgage - As property was already mortgaged as per Clause mortgage deed financial Corporation is having the right to sell property second respondent is auction purchaser who purchased property for valuable consideration and constructive possession was taken by financial Corporation plaintiff is not having any right over the suit property testator of the Will has signed the mortgage deed and Will be subject mortgage signed by testator - property was already sold out second respondent - Sale proceedings is already over and there no question of repaying loan amount at this stage - In above circumstance there is no necessity for this Court to issue an order to direct defendants repay loan amount first defendant and to release share of minors property was not Hindu joint family property and that property was purchased in name of a Firm and its partners - Mortgage deed was executed by firm through its partners - Hence Prasad and necessary party to suit - Loan was obtained for Sri Krishna Hence Trading Co and its partners are necessary parties to suit other legal heirs of deceased are necessary parties - Non joinder of other legal heirs namely is fatal plaintiff above discussed issues are decided against appellant - Property belong to Firm and not the individuals - No dissolution of partnership proved - Wills are not proved - Revocation of Probate order is confirmed by this Court - Mortgage was created by the testators prior to execution of the will - Hence it decided that there no sufficient reasons to allow appeal or to interfere in judgment of trial Court - Appeal dismissed
JUDGMENT :
R. Tharani, J.
1. Heard the learned counsel appearing on both the sides.
2. These appeal filed against the common Judgment and Decree passed in O.S. No. 5 of 2010, 28 and 29 of 2011 dated 27.04.2015 on the file of the learned Principal District Judge, Tuticorin.
3. The appellants herein are the plaintiffs in the above said suits. The respondents are the defendants. The trial Court has passed a common Judgment.
4. The case of the plaintiff in O.S. No. 5 of 2010 is that the first schedule property jointly belonged to Gothawari Sureka, Hariprasad Sureka and Ram Avathar Sureka by virtue of purchase by them jointly as partners of M/s. Hari Prasath and Co. through a registered sale deed dated 07.08.1981. In the year 1984, Gothawari Sureka and Ram Avathar Sureka got the first schedule property in the oral partition and the second schedule property was given to Gothawari Sureka. On 24.11.1999, the said Gothawari Sureka executed an unregistered Will bequeathing the second schedule property in favour of the plaintiff who is the wife of her grand son namely Arun Kumar Sureka. Subsequently, on 06.02.2002, the said Gothawari Sureka died and the Will came into force.
5. The third defendant has borrowed a loan from the first defendant on 18.02.1999. The partner of M/s. Hari Prasath Sureka mortgaged the schedule property in favour of the first defendant Corporation and deposited the title deeds in favour of the first defendant Corporation and deposited the title deeds in favour of the first defendant Corporation and thereafter the third defendant did not repay the loan amount and the first defendant issued a notice on 26.09.2002 and as there was no response, it is alleged that on 07.02.2003 the first defendant has took constructive possession of the second schedule property mortgaged by M/s. Hari Prasad Sureka and Co. and its partners.
6. The alleged constructive possession taken by the first defendant against the collateral security offered by the guarantor is invalid under Section 29 of SFC Act. The first defendant had to approach only the District Court as provided under Section 31 of SFC Act. Hari Prasad Sureka one of the partner of M/s. Hari Prasad Sureka and Co., has filed a W.P. No. 5528 of 2003 and subsequently he died. Since the first defendant attempted to disturb the peaceful possession of the plaintiff, the plaintiff has filed a suit in O.S. No. 114 of 2003 before the Sub Court, Thoothukudi for bare injunction. The petition in I.A. No. 283 of 2003 for temporary injunction was allowed on 17.06.2003. Thereafter the suit was transferred to learned Principal District Munsif and was taken on file as O.S. No. 592 of 2005 and the suit was dismissed on 03.10.2007. Then the suit was restored on 06.12.2008 and was transferred to the Additional District Munsif Court, Tuticorin. During this period, the first defendant brought the second schedule property for auction on 30.11.2007.
7. During the life time of Hari Prasad Sureka, he executed a Will in respect of the first schedule property in favour of the minor Abiyantha Sureka and the Will was also probated before the Sub Court, Thoothukudi in Probate O.P. No. 16 of 2007. The minor filed an application through her mother on 29.11.2007 requesting the first defendant to stop the auction and she filed a suit in O.S. No. 91 of 2008 before the Principal District Munsif Court, Thoothukudi to declare that the auction of the first defendant is null and void and for permanent injunction. Even after that suit, the first defendant called for tenders and brought the collateral security for sale on 30.11.2007. Without following the guidelines of the Hon'ble Supreme Court, the first defendant sold the property to the second defendant for a very low cost and executed a sale deed in favour of the second defendant on 03.07.2009.
8. The case of the first defendant in O.S. No. 5 of 2010 is that there, was a huge arrears of loan amount. The first defendant sent remainders to the third defendant to pay the insta
